Business and Human Rights: A P&O Ferries Case-Study

Abstract

Business and Human Rights:A P&O Ferries Case-Study KD Ewing (bio) Quite by chance, I was completing a section of my Human Rights at Work course at King's College London. The section in question was on 'Business and Human Rights', and formed part of the Human Rights at Work (LLM) course. One of the themes covered in the latter section of the course is the obligation of businesses to comply with Human Rights obligations and the multiple sources of that obligation. And then came the P&O announcement like a bolt from the blue, once again raising big questions about the effectiveness of soft law instruments as a means of ensuring that big business behaves in a socially responsible way. Business enterprises 'should respect human rights' Pre-eminent amongst these sources are the UN General Principles on Business and Human Rights (UNGPs) approved in 2011 (the so-called 'Ruggie principles' after their author). These seek to impose obligations on governments to protect against human rights abuses; on corporations to respect internationally recognised human rights; and on States to 'ensure as part of their duty to protect against business-related human rights abuse' that those affected have access to an effective remedy. The principles require national governments to develop an action plan to promote their implementation, which the British government proudly claims to be the first to have done. This can be found on the BEIS website, with the government's implementation document claiming implausibly that 'the promotion of business, and the respect for human rights, go hand in hand'. Not only that: 'The 'golden thread' of safeguards in society that are good for human rights–democratic freedoms, the rule of law, good governance, transparency, property rights and civil society–also provide fertile conditions for private sector led growth'. The question that then arises is what is meant by human rights for this purpose? To which human rights do these obligations apply? The position could not be clearer or more expansive. According to the UNGPs, they apply to the 'international bill of rights' (meaning the UN Declaration of Human Rights, as well as the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights), as well as the ILO Declaration on Fundamental Principles at Work. It is not necessary to go into these in great detail here; they are easily accessible on the web. So what are the obligations on the part of the government to comply with principles which have now been endorsed by the G7 as part of the currency of globalisation? First they have a duty to 'prevent, investigate, punish and redress' human rights abuses. Secondly they should set out 'an expectation that all business enterprises domiciled in their territory and/or jurisdiction respect human rights throughout their operations'. Thirdly, they should enforce laws that are aimed at or have the effect of requiring business enterprises to respect human rights'. Special obligations arise specifically in relation to those businesses which are supported by the State or have contracts with the State. One other obligation which is worth noting in light of press reports that a Department of Transport was notified by P&O in advance of the announcement, yet did nothing to stop it, but on the contrary appeared to condone the company's decision. This is the principle that states should ensure that government departments that shape business practices are aware of and observe the State's human rights obligations when fulfilling their mandates. This includes providing relevant information, training and support, raising questions about the training and support of the DoT official, whose responsibility when circulating details of P&O's decision was to raise a red flag not to flash a green light. A duty to 'identify, prevent, mitigate, and account for' So far as the company itself is concerned, the Guiding Principles impose multiple human rights obligations. They must avoid causing adverse human rights impacts in their activities, and address such impacts when they occur, and in order to do so, they must take a number of prescribed steps. First they must have in place policies and processes, whereby they commit to meet their...